Funny Hawaiian Prints

Donno, Mary E. v. Pavez Silva, Liliana del Carmen and other

Tribunal: Sup Court
Date: 10/08/2004
Parties: Donno, Mary E. v. Pavez Silva, Liliana del Carmen and other

LOCATION - Effects on the tenant - Guarantee - Guarantor's Death - Back IOU - Effects

OPINION OF THE ATTORNEY GENERAL'S OFFICE:

C. Nat Civ, Room E, reversed, as was the subject of complaint, the judge's decision of 1 st Instance, and, accordingly, rejected the plea of \u200b\u200binability to articulate title by the heirs of the co-defendant Richard E. Stekelorum admitting execution against the deceased and his heirs (pages 327/328 row.). For well
decision took into account that the lessor sued based on the lease agreement signed on 10/6/1993 and joined the title with the acknowledgments of debt and instruments of 7/5/1996 and 13/2/1997 (v. photocopies fs. 8 / 18 rnd.).
said that if it was true that Stekelorum, died 23/1/1995, and therefore did not sign the last papers referred to, no less so than in the case was not concluded a new contract or de novo above reason, according to art. 3417, 3420 and coincidental rules. of VCCI., the deceased and his heirs should respond in the way it is forced.
said that in the lease expiring on 3/5/1995, the deceased are the guarantors of solidarity and "primary payer" of all obligations of the tenant, expressly agreeing that the obligation still subsists after the expiration of the lease and until the lessor to return the locado (clause 15). Based on this sentence that it set the case referred to in art. 2005 of VCCI., Which defines it as "jointly and severally liable."
In such conditions, he understood that the obligations assumed by the deceased only ended with the delivery of the property, a solution that was unchanged by the fact that after the due date will sign with the tenant and the other co-debtor 7/5/1996 document, as it was not a new contract. He noted that there is explicit mention that did not involve renewal of the lease or tacitly, and it was recognized that at that time was owed the sum of $ 5818 for rent arrears of the lease expired and the months of occupation so far . It was also noted that retained their validity, inter alia, clause 15 of the contract as to the obligations undertaken there.
recalled that the novation is not presumed and it is necessary that the will of the parties clearly manifest in the new convention, or the existence of the above obligation is incompatible with the new (art. 812 of VCCI.). Thus he went on, the same law provides that alterations in the original obligation not to do the main purpose or cause, shall be deemed to modify only the obligation but not extinguished. He said that by virtue of having altered only that period, was forced to conclude that the co-debtor and his heirs had to respond to the date of evacuation of the building.
stated that according to art. 303 of CPCCN. It was mandatory application of the whole doctrine "Cornelius v. Ruax DJ Mariano and another" that "an obligation as the primary payer, answered, in principle, no limitations for the rent after the expiration of period established in the lease when it was stipulated that both the tenant forced to hand over the house. "
Furthermore noted that the precedent of this court cited the decision appealed against (acc. cause of 7/9/1995 176387 ) was not applicable because the species there, having found a substantial modification of the term, the price and even the agreed interest, it had been demonstrated that a new obligation that was not guaranteed.
2 .- Against this decision, the heirs of Stekelorum brought the extraordinary remedy of fs. 333/347, whose rejection of fs. 363 motivates this complaint.
contest the decision was arbitrary, and criticize the House has been deemed applicable by Article 15 of the original lease. They note that the Convention of 07.05.1996, late Mr. Stekelorum-established parties that the period of 06/10/1995 (date of expiry of the original contract) and to five months, the lessor extended stay the Tenant that she had not finished building his house. Claim that they want to force the cause of the grace period agreed expensive than landlord and tenant, when it only worked beyond the expiration of the contract in case of refusal by the tenants to leave the premises. Therefore they argue, before the prolonged stay in the conventional way, turn owed nothing to the performer. They say that such arbitrariness violates the right to property and the principle of good faith.
grievances concerned that the agreement of 7/5/1996 is not considered a new lease, if it satisfies all conditions of such. Argues that it contains provisions relating to the locative term, ranging from the 1/6/1995 until 30/12/1996, which is nearly the same time as the original contract. Claim that is also set to refinance the amount due from the Tenant acknowledges that within the contract and, therefore, they say, is renewal of the previous obligation. Point to the fact that the clause 11 duplicates the original stated interest. They say that to celebrate this new contract can not be forced to a third party who had died a year earlier.
Based on the above, they complain that the judge has ruled that there was no renewal for failing to substantial modification of the original contract, and claimed to have understood that the price did not change the location where this is not because the price was refinanced agreed in the first contract, agreeing, therefore, a separate obligation. They say that is false
told by the judge in order that although the deadline was extended locative, did not change other contract terms, as was agreed, compared with the first contract, a double penalty clause in case of default (clause 11, pp. 12).
Finally, they complain that the decision violates the right of equality before the law, which states that a ruling is not applicable to itself because that precedent dictated found a substantial modification of the term, the price and even the interests agreed, it being understood, a contrario, that this did not happen in this case. However, "claim", attentive to what is said in this action and according to the record, the identities between the two causes are undeniable, so is a violation of their right to be treated equally with equal.
invoke further institutional gravity, to be produced to be all guarantors and / or principal paying leases, in a position to continue to respond indefinitely by successive overs between landlords and tenants.
3 .- It should be remembered, first, that the court has said that although the decisions handed down in the executive proceedings are not in principle to the final decision referred to in the art. 14 of Act 48, it should make an exception to that rule if the resulting offense could not be reviewed in a process of further knowledge (v. doctrine Bugs: 319:79, 625, 1097, 320:750, 321:706, among others), as is the case, where the purported termination of the bond would not be admissible.
Examined the original lease and agreement dated 7/5/1996 whose copies were added to fs. 16/17 and 8 / 15, respectively, we see that in the latter, beyond the statements of the parties in order that did not involve renewal or automatic renewal of the lease expired, "was changed the delivery of the property (v . fs. 8 row.), the price of the lease was expressed in dollars as opposed to the original contained in U.S. dollars (see fs. 9 and 16), doubled the interest rate for default (see fs. 12 row.), and debt was refinanced rent arrears, including the months of occupation until the conclusion of the agreement (see fs. 9 and row.), all of which, obviously, without the consent of the guarantor, the date of signing of this agreement, had died.
Under such conditions are sub-adjusted terms and considerations lite releases by EV in the preceding Bug: 320:750, in order that, even if you apply the "primary payer" the provisions on joint and several debtors (conf . art. 2005 of VCCI.), the temporal scope of that obligation can not be projected outside the scope of its own, that is, the contract that bound understood.
are cautioned, therefore, that the House failed to differentiate that the guarantor's obligation includes only the payment of rent, interest and other accessories for payment in the original contract until its expiration date, since, according to the records of the proceedings, there was no negative tenants to return the property locado-course in which the guarantor would have remained bound, but rather a grace period agreed between it and the lessor, the agreement which the guarantor was not involved.
Again, as in the preceding period, the fact it is a joint debtor or stipulation would respond by contract compliance until the Tenant returns locado good "(v. fs. 17), can not derive the imposition of a new requirement, different or more burdensome than the assumed-if there is no intervention and consent of the co-signer.
In light of the foregoing, I reiterate, the heirs of the guarantor are held responsible for back rent and interest for payment in the original contract completion date thereof. Other obligations that make up the covenant of 7/5/1996, they are unenforceable, because it concerns only those who signed the agreement.
VE also said in the foregoing mentioned that within the framework of the implementation of specific rules of substantive law that enshrine the principle of relativity in the effects of contracts, it is not possible, even at the joint and several debtors, aggravate the conditions of their joint interested (conf arg. for the transaction art. 853 of VCCI. and note), with the stipulations in this respect res inter alios acta and unenforceable for those who were not party to them.
It is worthwhile to note, in all events, the conflicts that arise in areas such as cars, have been finally resolved after joining the VCCI., By Law 25628, Art. 1582 bis, which reads: "The obligation of the guarantor ceases automatically upon expiry of the lease except that resulting from the non-return in due time locado property. It requires the express consent of surety to be bound by the renewal or extension express or implied, of the lease contract, once concluded this. Will void any provision that extends the bond early, be simple, supportive and co-signer or primary payer, the original lease.
For these reasons, I think should be done to the complaint, reverse the decision appealed and have become the original court acted so that, for it belongs, with new ruling is issued pursuant to the statement. Buenos Aires, November 4, 2003 .- Nicholas E. Becerra.
Buenos Aires, August 10, 2004.
Considering
The grievances of the appellant have been considered adequate grounds for the opinion of Mr. Attorney General, the court Share and endorses for the sake of brevity.
Therefore, it is stated from the special appeal and annulling the contested measures. With costs. Return the case to the court of origin so that, through whom it may concern, proceed to issue new ruling in accordance with the statement. Add the complaint to the principal. Reintégrese deposit. Notifíquese and returns .- Carlos S. Adolfo R. Fayt .- E. Vázquez .- Raúl .- Amelia Berraz Zafaroni .- Carlos A. Vidal Muller .- In dissent: Henry S. Antonio Boggiano .- Petracchi .- John C. Maqueo. Dissent
Drs. Petrachi, BOGGIANO and Maqueda.
Considering: That the special appeal, the denial of which results in the complaint is inadmissible (Art. 280 of CPCCN.). Therefore
, and heard Mr. Attorney General, rejecting direct submission. It gives up the tank. Notified, devuélvanse the case to the court of origin and timely filed.